March 17, 2006

How They're Using Terrorism as an Excuse to Dismantle the Nation-State

by emptywheel

I'm only now getting around to reading Jane Mayer's must-read article on the justifications for torture. The whole thing is worth reading. But there's one passage that really struck me as shocking. It's John Yoo's description of why presidential power supersedes the precedent of Youngstown Sheet & Tube Company v. Sawyer, which ruled that presidential power was limited in areas where Congress had legislated.

“The war on terrorism makes Youngstown more complicated,” he said. “The
majority opinion explicitly said it was not considering the President’s
powers as Commander-in-Chief in the theater of combat. The difficulty
for Youngstown created by the 9/11 attacks is that the theater of
combat now includes parts of the domestic United States.”

Now, I'm sure Glenn Greenwald and Anonymous Liberal and Marty Lederman have been making this point for weeks, but I must have missed it. Basically (and I welcome any kibitzing from the lawyers in the crowd), this argues that because of the nature of the war we're fighting, presidential powers cannot be limited in ways they have historically been limited. This is the answer, btw, to the objection of why 9/11 would justify measures that we didn't take under World War II, which clearly represented a much bigger threat to our way of life. During World War II, we were fighting discrete nation-states with recognized sovereign borders. Therefore, the president's power as commander-in-chief only extended outside of our borders. But now that we're fighting an enemy that is not a sovereign nation-state, one that has infiltrated our own country, commander-in-chief powers extend into the domestic sphere. (A question for the lawyers out there--does this hold for the justification for internment camps?)

There are a lot of reasons to find this justification troublesome. But what most concerns me is the way in which it fits so neatly with recent efforts to roll back the concept of sovereignty as it has developed since WWII.

Since WWII, international law has recognized the sovereignty of nations, particularly members of the UN. A nation was free to establish and execute laws within its own country. But a sovereign nation had to deal with others according to certain rules, except during times of war. And even the justification for war was limited to certain cases, and the conduct of war was limited by certain rules. While this agreement did nothing to ensure that conduct within a country met any standards of morality, it provided at least the appearance that conduct between countries met certain standards of legality (in many cases, it really was just an appearance, as the Soviet Union and the US found plenty of ways to violate the sovereignty of client states). There have been exceptions to this system (most notably the ANC during the apartheid era and the PLO now). But it worked fairly well in practice.

But in the last 20 years, the US has spearheaded changes in this understanding. One of the reasons for changing this understanding is really important. If a country (like Serbia or Rwanda or Sudan) is massacring a subsection of its population, then how does the international community justify going into that country to stop it? Particularly if (as happened) there is not agreement among the international community about who is responsible for the massacres and why? Our intervention in the former Yugoslavia is an example of where violating the sovereignty of a country represented a net good.

At the same time, though, the US led a move away from the UN as the primary moderator of relations between countries, to the WTO. And the WTO has a completely different concept of sovereignty built into it. Some of this is voluntary, the concessions a country makes to join the WTO. But some of it is inherent to the organization. WTO puts economic relations above issues of legal sovereignty, limiting the ways in which an individual country can use labor, environmental, or consumer protection legislation to protect its interest. While the punishment is economic (not military), it still cuts into the "modern" notion of sovereignty.

The problem with this move away from sovereignty is that it limits the way people can mobilize to represent their own interests. Regardless of whether a country is democratic or authoritarian, this raises the relationship between employer and laborer and consumer and producer to the same level of import as the relationship between citizen and state (arguably, in some cases, it replaces the latter with the former). At the same time, the economic reality created by globalization has created huge numbers of economic migrants who, once they migrate, often become stateless people, with no legal outlet or protection (note, this is an economic consequence, not a legal one). When I say the people running our country are really Neo-Feudalists, this change in the concept of sovereignty is one of the key concepts I'm talking about. They're trying to break up the legal status the citizens of a sovereign state have, thereby making them less secure and more compliant.

So how does this relate to Yoo's justification for torture?

Well, if I'm understanding the justification correctly, it basically says the president cannot be bound by law (international or domestic) so long as he is engaged in activities related to the war on terror. This means he can violate the sovereignty of other countries (though if our allies helping us with extraordinary rendition in Europe are any indication, they're happy to cede their sovereignty on their own). And it means he can violate our rights as citizens. As we've seen with the NSA domestic spying case, these people are arguing that, in the pursuit of terrorists (however vaguely defined), the president can violate our Fourth Amendment rights. At both the national and international level, it serves to further dismantle the relationship between citizen and state.

Now, any review of the NSA program makes it clear this is what they're doing. But the reason I'm shocked is how well the justification fits into this larger trend. The reason I'm shocked is how easily they've turned a terrorist attack into a justification to advance their anti-sovereign dogma. (I guess I shouldn't be surprised, since Israel is the test case for this, but still.)

No wonder they don't want to fight terror as an issue of law and order. Fighting it as a war advances their larger goals so well.

Comments

What I don't understand is why this hasn't been obvious to everyone since the announcement of the "capture" of Jose Padilla. From that day it has been completely obvious that the view of the administration is that the entire world is a battlefield and the President (as Commander-in-Chief) has battlefield command authority. Maybe it was just too audacious for people to take in, but they've been very open about it. They believe the following:

If the President determines that, in his opinion, without any limitation or check, that it would be in the best interest of the U.S. in the "War on Terror", he can:
order the indefinite detention of any person anywhere in the world (including U.S. citizens on U.S. soil);
order the assassination of any person anywhere in the world;
order the use of military force, and all attendant activities, anywhere in the world;
and order the use of torture against any person anywhere in the world.

hi ew-
I guess I'm surprised that you're so surprised...as a reformed academic and anti-postmodern bullshit kind of person, you've seen the triumphal announcement of the death of the restraining classical order in all its practical sloppiness and delayed ugliness before, no? Emotional, romanticising, "humanist," anti rational, anti truth, nihilistic aesthetics and ethics are at the top of the slippery slope and arbitrary, reactionary, tribal, neo-feudalist, short lived destructive empire, chaos are at the bottom. Ever read Discipline and Punish backwards? It ends with torture and terror inscribed on the human body! Sorry for the rant :)

The only thing I'm surprised about is how neatly they used terror to advance that collapse. Not that they did it, not that the larger move is going on, just how conveniently terror can be defined to support the larger goal of ending the rule of law.

Or to put it another way--their goals, in defining torture as they have, are precisely the same goals their pursuing with their policy of free-but-not-free trade.

In the '60s I took a course from Louis Hartz on something like European Intellectual History. He kept stressing how in the "old order" there were many mediating institutions like the church, or the family, but the modernizing liberals all saw them as illiberal, so they tried to curb them, and the radicals tried to smash them. That left the "sovereign X" (which he would then draw on the black board with great emphasis) and the citizens (here he'd draw a bunch of little dots), and it was an all to easy step from there to totalitarianism, where the state controlled every aspect of life.

That is really what the Cheney-Rumsfeld-Addington-Yoo bunch is really after, and it is to the eternal shame of the GOP that they can't see that.

It is obviously the case that they have "internationalized" the WOT to justify whatever they want. When the whole world is a battlefield, everyone is potentially a combatant, including people in the US who called the same pizza parlor as someone who turned up on a cell phone captured in a semi-lawless area like Northern Pakistan or Afghanistan, or a little old lady in Switzerland who writes a check to an Islamic charity.

They may be obliterating the notion of the sovereign state for everyone else, but not for themselves. I'd say they are busy dismantling the liberal state (in the sense of all the rights of citizens that have been enacted since the enlightenment) but not so they can be feudal lords, but so that they can have unfettered power to take our conuntry into war with minimal dissent and a neutered press and Congress. That is pure 20th Century totalitarianism.

At the risk of over-theorizing this, IMHO, terror is not a clever afterthought or complement to a coherent plan, nor is torture. Fear in its various forms (terror in the heart, torture on the body, chaos in society) all amplified by the media is central to the accumulation of power generally resisted by rival rational, sovereign entities. It's the decline of sovereignty (state, human, etc) which is the unintended byproduct of the grab.

Actually, I do think they're trying to get rid of the state. Otherwise, why ruin the military like they're doing? Why privatize most functions of the military and rely on mercs for military functions? There is nothing about these people--their bank accounts, their addresses, their mentalities--that are "national" anymore. And they are setting up a world in which (both economic and environemntal) insecurity is so rife that they will need to employ their own army.

pg

That's one of the things I'm trying to think through. Which came first, the fear or the loss of sovereignty. Ronnie Reagan is the one who first started to push away from sovereignty. And while he was not averse to fearmongering, he did it in such a nice genial way. That's not what these folks are doing, granted. But I think after Iran-Contra they needed to find further justifications.

So I guess I'd believe the anti-sovereignty came first. But I could be persuaded.

I'm about to give a talk which argues that early Arab nationalism was sparked with a sense of collective self and sovereignty (accidentally) by Ottoman imperial governmentality which developed publicness and order (public space, journalism, public safety) not out of altruism but as a technique to govern unruly provincial "savages". the Ottoman reformers wanted to create a homogenous, easily surveilled population because it was easier to dominate, but the locals put the new spaces, media and institutions to their own uses and quickly got a sense of their own emergent contours and united potential. Just as I argue that Arab sovereignty was the unintended byproduct of Ottoman machinations to erect new structures of order, the erosion of sovereignty is the unintended byproduct of threats,fear, looting, creative destruction, dismantling of constitutions....

Sounds very interesting (can you email me a copy?). Perhaps the difference in our opinion comes from our different geographical expertise. My expertise is rustier than yours, but a lot of this understanding comes from focusing on the Czech lands and Argentina as compared to France. How the conflict between the Jesuit/Hapsburg anti-modern influence and the aspiration to be "modern" played out.

I don't think they intended to ruin the military; it was a consequence of their fantasy-based, ill-thought out invasion scheme. You need a police force (the monopoly on force aspect of sovereignty) to keep people docile. And what is the "unitary executive" if not Hartz's "sovereign X"?

They need the State as such, just not all parts of it. Not Congress and not the regulatory agencies. But the IRS (for the bottom 98%) and the police and spy agencies.

They don't need, nor do they intend to keep, most of those things. They're getting a ton of money via graft right now, kickbacks and stuff, which limits the need for taxes. And if the oil grab works out, they won't really need the taxes anyway.

They've already got off the books police and spy agencies, which they prefer because there are no limits to what they can do with them.

Furthermore, the unitary executive is simply an employee of the corporatists and foreign investors at this point. I mean, if Bush were really going to exercise that much power by himself, do you really think they'd cede him that power? He is useful, particularly for this transitionary period. But I do think it's tranistionary.

The Dems don't want to touch the subject, but it's hiugh time somebody retrained the American psyche about this "War on Terror[ism]" bullshit.

Terrorism isn't an enemy, it's a tactic, one that can be used by anybody at any time. It has been used throughout human history. Even our own forfathers used terror at times to cow the British. Terror is a tool used mainly by the underdog, against a foe that has overwhelming superiority in a conventional military sense.

You can never win a war on Terrorism".

War on Terror is a rhetorical device, same as War on Drugs, War on Poverty, etc. Since when does mere rhetoric have legal standing?

ew, I think you're very on target as usual but I think it sounds too much imo as though they planned it this way FROM THE START. DeadEye and the other neocons planned that we would be "greeted as liberators" and that the Iraqi's would all want to apply for dual citizenship with the U.S. so that they could register as Republicans. They really thought supply side economics and tax breaks for the wealthy would allow the economy to outrun the national debt.
Your analysis accurately describes from a very high altitude, the evolution of their thought/denial as their policies have failed.

(A question for the lawyers out there--does this hold for the justification for internment camps?)

>>>>>>>>>>>>>>>>>>>>>>>

Keep in mind, Yoo didn't actually even ADDRESS Youngstown ;) But the internment camps situation is not so specificially related to theatre of operations issues.

Here's the thing (and why I keep going back, over and over, to Ex Parte Milligan rather than Youngstown as the winner).

No one is really going to try to claim that, when you have two sets of armed forced meeting on a battlefield and pointing guns at each other or dropping bombs from overhead, etc. that the normal "rules" apply - no one holds a trial before the shoot the guy from the other side in a battlefield. However, there are still in general (or were - preBush and preCorruption of our armed forces) rules about things like surrender on the battlefield and how you handle enemies who surrender or are captured on the battlefield. THose are usually done via military tribunals (and when we stil had some tattered shreds of morality were done pursuant to the UCMJ and treaties and conventions).

So this is where the "theater of operations" and "battlefield" language come in as a kind of "hocus pocus" incantation to make the Constitution disappear.

In addition to this military battlefield issue, wherein there are some different rules to be applied, the Constitution does also refer to the ability to suspend (as in - for a short time) habeas in certain situations relating to rebellion and similar chaos related concepts as a matter of keeping the civil order. There is no need to have a "theater of operations" or battlefield to have this suspension of habeas and this is what was used for interment camp justifications. Temporary detenton for order.

Of course, the temporary detention of Japenese Americans became an actual roundup and relocation and something far different than temporary habeas suspension and much more invasive from the standpoint of other rights.

That case (which was mostly disavowed - until Alito) aside; what does it mean to suspend habeas? One thing it DOES NOT MEAN is to suspend the 4th, 5th and 6th amendments. We have case law specific to that effect. That same case law also tells us how we handle the "theater of operations" and "battlefield" arguments that are made when war and/or acts of aggression are occuring on our home soil. That case is Milligan and to be honest, even such a far right judge as Scalia drew a line in the sand in the Hamdi case over his support for Milligan (won't that be a shocker - if Padilla or surveillance cases get struck down bc Scalia support Milligan?)

In any event, Milligan was a civil war case that took place in Indiana. During the civil war, acts of treason, espionage, destruction, etc. were taking place everywhere in the country. As the Govt argued, at no other time had there been such a situation - where people who were seemingly a part of a peaceful community were plotting to bring death and destruction to those communities (think - Confederate traitors and Sleeper Cells and interchange back and forth).

In Milligan, the Govt also argued that the whole country WAS the battlefield. THe whole country WAS the theatre of operations. As a matter of fact, martial law had been declared in the Union states, like Indiana. So, when the military seized Milligan and drug him from his home as a Confederate traitor, they argued a) habeas was suspended and they (military) could hold him outside the judiciary - for a brief time at least; b) they could rummage through his person and effects without warrant or judicial intervention; c) they could take away his rights to due process, confront accusers, civil trial, etc. and just "deal with him" militarily including hanging without trial, etc.

The United States Supreme Court said - nope to all but a.

The Court agreed that habeas had been suspended and while there were questioned about how it had been suspended and the time, manner etc. - it basically said - given the circumstances, you can hold him for awhile without charges.

HOWEVER -as to all that malarky about the whole country being the battlefield (and keep in mind - this was during the Civil War where HUNDREDS Of THOUSANDS were killed and there were acts of sabotage everywhere) - that's crap. We (the Court) don't have to worry ourselves about what the "rules of war" and the President's rights as CIC are, bc those rights can NEVER trump the rights of a US Citizen, on US soil, under the Bill of Rights (specifically mentioning the 4th, 5th, and 6th amendments). Even where martial law has been declared, it doesn't matter. As long as civil courts are open and operating - a citizen's rights under the Bill of Rights trumps the President's war powers. Period. To hold differently, the COurt said, would be to allow those who are supposed to defend the Constitution to wait until it is under attack from the front, and then use that attack to stab it in the back.

It's always been my opinion that Youngstown is the battlefield for where you draw the line between Congressional and Executive Power and it is a more amorphous standard.

Milligan is where you draw the line between the People and all three other branches of govt (as Milligan says, not the Executive, the Legislative, or the Judicial branches or all three acting together, can deprive the People of their rights under the Billof Rights - at peace or at war).

You're correct in your assessment of this insidious tactic, but the way to neutralize it is NOT to argue what constitutes the "Global War on Terror" and what powers the President may or may not have while fighting the GWOT. WE ARE NOT IN A WAR because only Congress has the power to declare war and they haven't. A "use of force" authorization is NOT a declaration of war. As Iraq so amply proves, military force, otherwise known as war, is not the way to combat terrorism and never has been. Terrorists are criminals, not "enemy combatants." The sooner the country learns that GWOT is nothing but a giant scam to enrich and empower BushCo, the sooner we'll get our democracy back.

It's worth pointing out that the Yoo comment I referred to was withdrawn (as it related to the torture justification they withdrew). So I'm not sure if that argument still holds legal standing (Glenn and AL have done a lot of great work on how the justification for the NSA spying, at least, has changed).

And of course, I don't buy the argument in the least.

You think the Senators writing the "get out of your legal NSA quandry free" bill realize they're allowing the Administration avoid a court review that would almost certainly declare their program illegal?

I'm not sure it makes any sense to say that this "war on terror" is so much different from any other war, either.

Apparently, the idea is to say that because we're not fighting a nation-state, the enemy is so shadowy that we need to be able to suspend certain provisions of the Constitution in order to keep up with their secretiveness.

But every war we've ever fought in presumably involved an enemy with spies, clandestine agents and even saboteurs, almost certainly operating here, at home. Why does only this one require the suspension of the Bill of Rights?

A related point was raised by Woolsey at the War Powers of the Pes and NSA Spy Program held on Feb 28. He presses the point that the battlefield is now an electronic one in the United States post 9/11 "Since we're in a war" ... "Since the battlefield is in part... at home, we have to ...think very hard how to have a system that can provide a check and balance against the type of electronic mapping of the battlefield that I believe is necessary. An AG simply cannot go through the steps in time to deal with this type of problem."
Biden asks Woolsey about FISA being constitutional and Woolsey says no.
At one point in Hatch's part he says that New York should be considered a battlefield on the war on terror.

Apparently we will be getting new content for this matter tomorrow night. USA Today will be dropping the next shoe in the NSA matter, apparently Bush early on made the argument that if he could wiretap without a FISA warrant, he could also break and enter. The Paper has issued a Press Release announcing its "big Story" -- on line late tomorrow -- but it suggests there was much push back from FBI and some professionals in DOJ, so it is uncertain if they went ahead. They do, however, have a series of break in's at offices and homes of lawyers dealing with persons charged as terrorists.

This gives Russ Feingold's little censure resolution a mite more of a ring, should any of our Senators be of a mood to actually try to save the 4th Amendment.

Apparently the USA Today article is going to be a stunner, and I assume that putting out a press release about it is both an advertisement and protection -- One wonders if they will try to override the Pentagon Papers judgements against prior restraint by getting DOJ to try to stop the presses at USA Today.

Let's add the attempt to use natural disaster to accomplish the dismantling of state and local sovereignty at the time of Katrina. The one thing about which Mufacito was assiduous during that time, as I recall, was witholding permissions for aid to be delivered until Gov. Blanco ceded to him more control than was legally required. (To her credit, she did not cede.) At the time I think this was put up to incompetent legal advice given to the President but you know, I think it's time the burden of proving incompetence was put on these guys.

Since the storm passed, we have hundreds of thousands of people whose status as citizens has been attenuated, in the sense that all the rights that went along with their previous domicile have been cast into question. Ironically, the notion of citizen in this country has real strength only at the federal level; states, cities, or towns in our legal system grant only those rights associated with the ownership of their subdivided land (up to eminent domain), so a person who is a renter may have no right whatsoever to persist in the town, while even an owner might find the practical exercise of citizenship rights difficult when the social and physical infrastructure are ripped out from under her or his property.

I seem to have started something I can't fully think through now, but my immediate point is just to note that as a person who thinks mostly about urban matters, I have also noticed an assault on fundamental entities of society, and find it disturbing that the entities are so fundamental while the assault seems so deliberate.

Another way to get to what you're saying is the dependence Bush placed on non-profits and corporations (which also goes to your mediating institutions, Mimikatz) rather than on concentric groups of governmental entities.

Well, in the Hartz theory the mediating institutions buffer the citizen from the unitary State. What I think you are arguing is that "they", and by this I now take it you mean the corporatist wing of the GOP rather than BushCo as such, are substituting institutions like non-profits and of course corporations, who owe fealty to the GOP, as a substitute government that performs many of the traditional government functions but with none of the restraints, and is funded by (illegal) campaign cash from unsuspecting or not so unsuspecting donors.

On this, see Josh Marshall on Mitchell Wade's companies spying on US citizens directly for the WH or OVP.

In the '60s there was a guy in California who spied on anti-war and other protest groups for big corporations like PG&E. But this is much bigger.

One of the things that I think is quite significant about this is that 9/11 and the WOT are just excuses to put into practice things they (esp. the Cheney/Libby/Addington cabal) already had planned. The fear and loathing caused by 9/11 certainly accelerated their plans, but they would have used some other excuse (bird flu, Katrina, whatever).

Libby's motion to compel discovery is available at talkleft. One interesting tidbit is possible names for the "senior CIA official" and Libby's CIA briefer. The SO is either Robert Grenier or John McLaughlin, and the briefer is probably Craig Schmall (according to Libby's lawyers; wouldn't they know best?), but Peter Clement and Matt Barrett are also listed as possibilites.

Oh, and Libby's lawyers seem to think that the SO who told Cathie Martin about Plame was Bill Harlow (the CIA spokesman).

There's a stab of legal interpretation at FDL, but by Jamie, not ReddHedd. I guess she's too busy prepping for tomorrow's C-SPAN appearance.

IMO, a lot of comments on this thread ignore the fact that from Reagan through Newt's CONTRACT WITH AMERICA, "nation building" is a "four-letter" word.
http://www.findarticles.com/p/articles/mi_m1316/is_3_37/ai_n13257354
A lot of comments also ignore the fact that the Powell Doctrine, which guided our military actions in the Gulf War was simply ignored in the "occupation" of Iraq.

Another way to get to what you're saying is the dependence Bush placed on non-profits and corporations (which also goes to your mediating institutions, Mimikatz) rather than on concentric groups of governmental entities.

That is in part what I'm saying ... you could also look at the substitution of homeowner associations and business improvement districts for functions that used to take place in the public domain, a trend that of course is older and more general than the current administration, as more evidence.

But also, I was trying to get at the weakness of cities especially in this country as independent entities (they're pretty much entirely corporations created by their States, with only so much independent home rule as the States grant them) and the consequent weakness of the effective citizenship that their residents can derive from being located there. This weakness is likely not universal in either time or nation, and it could be worse in Louisiana than in some other States for all I know. And now I must let my computer have its memory so it might finish an install this week. `Scuse.

It seems to me that a lot of the accurate discussion on this thread about the dissolution of the sovereign state may be applicable to the current situation wrt Hamas. Western democracies and Israel are withholding support and tax receipts from the democratically elected Hamas. I believe one of Hamas' responses was to "open" a jail, to which Israel responded by invading and reimprisoning the prisoners. (Not sure if I have my facts correct here.)

John Casper
Yes, Hamas is an interesting case of this, but then the whole Palestinian question is as well. The PLO has observer status at the UN, which is rare for an NGO. It's a kind of implicit recognition that Palestinians are stateless illegitimately.

But yes, throw in the way we've responded to the Hamas election and it gets more hypocritical.